by Bruce Dunlavy
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On October 31, 2018, I published a post explaining the issue of “birthright citizenship.” The term is used to stand for jus soli, the law practiced by some nations (including the United States) that persons born within the boundaries and jurisdiction of said nation are automatically citizens of it upon drawing their first breath.

My post appeared on that date because a day earlier it had been announced that  President Donald Trump had stated in an interview that he could eliminate birthright citizenship by Presidential decree. Trump had risen to political prominence by being in the vanguard of the false contention that President Barack Obama was not born on United States soil. He rode that horse to Presidential candidacy and was subsequently elected twice.

Trump did not accompany the announcement of his belief that he could personally end birthright citizenship with a statement that he intended to do it. Shortly before being elected in 2016, Trump had abandoned his stance on Obama’s purported foreign birth. In fact, he jumped in front of the issue’s resolution by stating that Obama had indeed been born in the USA, and that he, Trump, was the person who had proved it.

Over six years after claiming he could eliminate birthright citizenship by executive action, Trump finally made a move in that direction. On the first day of his second term, he issued Executive Order 14160, intended to deny citizenship to persons born in the United States to parents who were undocumented immigrants or were in the United States on worker, student, or tourist visas.

The Order was quickly taken up in Federal courts, and several judges independently determined that it was unconstitutional and blocked the Trump administration from enforcing it. The Administration’s response was to bring another case challenging the right of District Court judges to issue injunctions that were effective nationwide. That case, Trump v. CASA, Inc., was decided June 27, 2025. By a vote of 6 – 3, SCOTUS sided with the administration and issued a partial stay of the lower courts’ rulings.

Upon receipt of the favorable decision, the Trump administration brought the original case itself, Trump v. Barbara, before SCOTUS, seeking affirmation of Executive Order 14160. This would decide the initial question, viz., whether the Order was in accordance with the first sentence of the Fourteenth Amendment, which reads, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” As noted in my earlier post, it took another SCOTUS decision, United States v. Wong Kim Ark, to provide final clarity that the Amendment is to be taken literally.

Image credit: yahoo.com

The case was entered at the beginning of October, the start of the 2025-2026 term. The Court heard oral arguments April 1, 2026, and issued its ruling on June 30, 2026. In a 6 – 3 decision, Executive Order 14160 was struck down. Chief Justice John Roberts wrote the majority opinion, with Justices Elena Kagan and Sonia Sotomayor concurring and Justice Ketanji Brown Jackson adding her own opinion in agreement. Justice Brent Cavanaugh agreed with the decision about the illegality of the Order, but he issued a separate ruling that based his decision on statutory grounds and not Constitutional grounds. Justices Clarence Thomas and Samuel Alito wrote lengthy opinions in dissent, with Justice Neil Gorsuch contributing a much shorter dissenting opinion.

In this manner the Executive Order was overturned, and the citizenship status of persons born in the United States remains unchanged. The underlying impetus behind the attempt to change the rules of citizenship, however, also remains unchained.

That impetus is the ongoing effort by the current President and Supreme Court to undo precedent in Constitutional matters. For half a century, the Republican Party skillfully played a long game in systematically transforming the Supreme Court into a vehicle for the rendering of conservative, reactionary, and revanchist decisions that would reverse the expansion of civil rights and racial/ethnic justice.

It started with Richard Nixon, who handed final approval on his first two SCOTUS appointments to the racist Sen. Strom Thurmond of South Carolina, in return for effecting Nixon’s election. Those two were rejected by the Senate, but Nixon and all the Republican U.S. Presidents since have made sure that every Justice they appointed, beginning with Nixon’s first success (Justice Lewis Powell in 1972) has been more conservative than the one s/he replaced.

This was accomplished by careful scrutiny of the decisions rendered by SCOTUS candidates in their previous judgeships, brilliant maneuvering in the Senate during confirmation hearings (especially by former Majority Leader Mitch McConnell), and deft dissembling by the court candidates themselves during Senate questioning.

The zenith of this strategy was made manifest in 2022, when SCOTUS demolished 49 years of precedent by overturning Roe v. Wade (1973), the case that had established Constitutional grounds for the legalization of abortion. Roe had been affirmed by SCOTUS in a 7 – 2 decision, with justices appointed by both Republican and Democratic Presidents on each side of the issue. The subsequent politicization of the court can be seen in the 2022 case, Dobbs v. Jackson Women’s Health Organization, in which only one justice crossed party lines.

The Republican Party made a long and concerted effort to overturn Roe, and eventually they accomplished it. Abortion is no longer the go-to issue for Republicans when mobilizing money, workers, and single-issue voters, and it has been replaced by the immigration issue, particularly when it is grounded in matters of race and class.

What does the SCOTUS decision in Trump v. Barbara portend? Will they rework their arguments and try again (and again, if necessary)? Or will they turn their attention to other previous decisions, revisiting such cases as Obergefell v. Hodges (2015) Lawrence v. Texas (2003), Texas v. Johnson (1989), Griswold v. Connecticut (1964), Gideon v. Wainwright (1963), Baker v. Carr (1962), all the way back to Brown v. Board of Education (1954)?

Before you dismiss those possibilities as far-fetched, remember what just happened in Trump v. Barbara. Let this sink in – The Supreme Court of the United States just decided a case in which four of the nine justices determined that the Constitution does not mean what it plainly says.